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The Problem of Free Speech in an Age of Disinformation	The Problem of Free Speech in an Age of Disinformation
2020-10-14 03:02:19 UTC	2020-10-14 16:14:33 UTC (about 13 hours later)

This summer, a bipartisan group of about a hundred academics, journalists, pollsters, former government officials and former campaign staff members convened for an initiative called the Transition Integrity Project. By video conference, they met to game out hypothetical threats to the November election and a peaceful transfer of power if the Democratic candidate, former Vice President Joe Biden, were to win. Dividing into Team Trump and Team Biden, the group ran various scenarios about counting ballots and the litigation and protests and violence that could follow a contested election result. The idea was to test the machinery of American democracy.	This summer, a bipartisan group of about a hundred academics, journalists, pollsters, former government officials and former campaign staff members convened for an initiative called the Transition Integrity Project. By video conference, they met to game out hypothetical threats to the November election and a peaceful transfer of power if the Democratic candidate, former Vice President Joe Biden, were to win. Dividing into Team Trump and Team Biden, the group ran various scenarios about counting ballots and the litigation and protests and violence that could follow a contested election result. The idea was to test the machinery of American democracy.
Describing the results in a Sept. 3 essay in The Washington Post, one of the project’s organizers, Rosa Brooks, a Georgetown law professor and Pentagon official during the Obama administration, mentioned a situation in which Biden won the popular vote but lost in the Electoral College. In that hypothetical case, “desperate Democrats” on Team Biden considered encouraging California and the Pacific Northwest to threaten secession to pressure Republicans to expand the size of the Senate.	Describing the results in a Sept. 3 essay in The Washington Post, one of the project’s organizers, Rosa Brooks, a Georgetown law professor and Pentagon official during the Obama administration, mentioned a situation in which Biden won the popular vote but lost in the Electoral College. In that hypothetical case, “desperate Democrats” on Team Biden considered encouraging California and the Pacific Northwest to threaten secession to pressure Republicans to expand the size of the Senate.
The next day, Michael Anton, a former national security adviser to President Trump, published an article about the Transition Integrity Project called “The Coming Coup?” Democrats were “laying the groundwork for revolution,” Anton wrote without evidence in The American Mind, a publication of the Claremont Institute. He warned that ballots harvested “lawfully or not” could tip close states to Biden.	The next day, Michael Anton, a former national security adviser to President Trump, published an article about the Transition Integrity Project called “The Coming Coup?” Democrats were “laying the groundwork for revolution,” Anton wrote without evidence in The American Mind, a publication of the Claremont Institute. He warned that ballots harvested “lawfully or not” could tip close states to Biden.
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By mid-September, Anton’s article was one of the most-shared links in extremist online communities, according to a newsletter published by the Institute for Strategic Dialogue, a think tank based in London. Dan Bongino, a podcaster and Trump supporter, covered Anton’s essay and the imagined coup in several videos, with one tagged, “They are telling you what they are going to do!” Just two of the videos pulled in at least six million views.	By mid-September, Anton’s article was one of the most-shared links in extremist online communities, according to a newsletter published by the Institute for Strategic Dialogue, a think tank based in London. Dan Bongino, a podcaster and Trump supporter, covered Anton’s essay and the imagined coup in several videos, with one tagged, “They are telling you what they are going to do!” Just two of the videos pulled in at least six million views.
On Sept. 9, a post appeared on Revolver News, a new right-wing website. It claimed without evidence that one participant in the Transition Integrity Project, Norm Eisen, who served as a counsel for the Democrats on the House Judiciary Committee during the impeachment proceedings, was a “central operative” in a “color revolution” against Trump, a term for uprisings that have toppled governments in countries like Georgia and Ukraine. Trump tweeted in praise of Revolver News a few days later.	On Sept. 9, a post appeared on Revolver News, a new right-wing website. It claimed without evidence that one participant in the Transition Integrity Project, Norm Eisen, who served as a counsel for the Democrats on the House Judiciary Committee during the impeachment proceedings, was a “central operative” in a “color revolution” against Trump, a term for uprisings that have toppled governments in countries like Georgia and Ukraine. Trump tweeted in praise of Revolver News a few days later.
On Sept. 15, the Fox News host Tucker Carlson had on his show Darren Beattie, a former Trump speechwriter who was fired after reports surfaced that he had attended a gathering of white nationalists in 2016 and who warned about Eisen and a color revolution. Two days later, Trump tweeted that “the Nov 3rd Election result may NEVER BE ACCURATELY DETERMINED, which is what some want,” generating tens of thousands of interactions on Twitter and a round of news coverage about one of the fears that the Transition Integrity Project sought to address — that Trump could refuse to accept the results of the election.	On Sept. 15, the Fox News host Tucker Carlson had on his show Darren Beattie, a former Trump speechwriter who was fired after reports surfaced that he had attended a gathering of white nationalists in 2016 and who warned about Eisen and a color revolution. Two days later, Trump tweeted that “the Nov 3rd Election result may NEVER BE ACCURATELY DETERMINED, which is what some want,” generating tens of thousands of interactions on Twitter and a round of news coverage about one of the fears that the Transition Integrity Project sought to address — that Trump could refuse to accept the results of the election.
All told, in September the coup fabrication was shared more than 100,000 times from public Facebook pages, generating many millions of interactions and video views, according to the data source CrowdTangle. Alongside Bongino and Fox News, there were small drivers of traffic like Long Islanders for Trump, the Silent Majority Group and a county Republican organization in Oregon, as well as private groups with thousands of members that CrowdTangle doesn’t capture. By the end of the month, the fraction of Republicans who were not “confident” that the election “will be conducted in a fair and equal way” hit 65 percent, higher than it was for independents or Democrats, in an NBC News/SurveyMonkey tracking poll. This month, Trump retweeted a response to a Republican member of Congress, Mark Green, who suggested that Speaker Nancy Pelosi could stage a coup.	All told, in September the coup fabrication was shared more than 100,000 times from public Facebook pages, generating many millions of interactions and video views, according to the data source CrowdTangle. Alongside Bongino and Fox News, there were small drivers of traffic like Long Islanders for Trump, the Silent Majority Group and a county Republican organization in Oregon, as well as private groups with thousands of members that CrowdTangle doesn’t capture. By the end of the month, the fraction of Republicans who were not “confident” that the election “will be conducted in a fair and equal way” hit 65 percent, higher than it was for independents or Democrats, in an NBC News/SurveyMonkey tracking poll. This month, Trump retweeted a response to a Republican member of Congress, Mark Green, who suggested that Speaker Nancy Pelosi could stage a coup.
The United States is in the middle of a catastrophic public-health crisis caused by the spread of the coronavirus. But it is also in the midst of an information crisis caused by the spread of viral disinformation, defined as falsehoods aimed at achieving a political goal. (“Misinformation” refers more generally to falsehoods.) Seven months into the pandemic in America, with Trump leading the way, coronavirus skeptics continue to mock masks and incorrectly equate the virus with the flu. Throughout the campaign season, Trump and other Republicans have promoted a false narrative of widespread voter fraud, which Attorney General William Barr, as the country’s top law-enforcement official, furthered in a September interview on CNN when he said someone in Texas was indicted for filling out 1,700 ballots for other people, which never happened. As fires tore through California and the Pacific Northwest last month, the president cast doubt on the science behind global warming, and people in Oregon defied evacuation orders because of false rumors that antifa, a loose term for left-wing activists, was setting the blazes and looting empty homes.	The United States is in the middle of a catastrophic public-health crisis caused by the spread of the coronavirus. But it is also in the midst of an information crisis caused by the spread of viral disinformation, defined as falsehoods aimed at achieving a political goal. (“Misinformation” refers more generally to falsehoods.) Seven months into the pandemic in America, with Trump leading the way, coronavirus skeptics continue to mock masks and incorrectly equate the virus with the flu. Throughout the campaign season, Trump and other Republicans have promoted a false narrative of widespread voter fraud, which Attorney General William Barr, as the country’s top law-enforcement official, furthered in a September interview on CNN when he said someone in Texas was indicted for filling out 1,700 ballots for other people, which never happened. As fires tore through California and the Pacific Northwest last month, the president cast doubt on the science behind global warming, and people in Oregon defied evacuation orders because of false rumors that antifa, a loose term for left-wing activists, was setting the blazes and looting empty homes.
The conspiracy theories, the lies, the distortions, the overwhelming amount of information, the anger encoded in it — these all serve to create chaos and confusion and make people, even nonpartisans, exhausted, skeptical and cynical about politics. The spewing of falsehoods isn’t meant to win any battle of ideas. Its goal is to prevent the actual battle from being fought, by causing us to simply give up. And the problem isn’t just the internet. A working paper from the Berkman Klein Center for Internet and Society at Harvard released early this month found that effective disinformation campaigns are often an “elite-driven, mass-media led process” in which “social media played only a secondary and supportive role.” Trump’s election put him in the position to operate directly through Fox News and other conservative media outlets, like Rush Limbaugh’s talk-radio show, which have come to function “in effect as a party press,” the Harvard researchers found.	The conspiracy theories, the lies, the distortions, the overwhelming amount of information, the anger encoded in it — these all serve to create chaos and confusion and make people, even nonpartisans, exhausted, skeptical and cynical about politics. The spewing of falsehoods isn’t meant to win any battle of ideas. Its goal is to prevent the actual battle from being fought, by causing us to simply give up. And the problem isn’t just the internet. A working paper from the Berkman Klein Center for Internet and Society at Harvard released early this month found that effective disinformation campaigns are often an “elite-driven, mass-media led process” in which “social media played only a secondary and supportive role.” Trump’s election put him in the position to operate directly through Fox News and other conservative media outlets, like Rush Limbaugh’s talk-radio show, which have come to function “in effect as a party press,” the Harvard researchers found.
The false story about Democrats plotting a coup spread through a typical feedback loop. Links from Fox News hosts and other right-wing figures aligned with Trump, like Bongino, often dominate the top links in Facebook’s News Feed for likes, comments and shares in the United States. Though Fox News is far smaller than Facebook, the social media platform has helped Fox attain the highest weekly reach, offline and online combined, of any single news source in the United States, according to a 2020 report by the Reuters Institute.	The false story about Democrats plotting a coup spread through a typical feedback loop. Links from Fox News hosts and other right-wing figures aligned with Trump, like Bongino, often dominate the top links in Facebook’s News Feed for likes, comments and shares in the United States. Though Fox News is far smaller than Facebook, the social media platform has helped Fox attain the highest weekly reach, offline and online combined, of any single news source in the United States, according to a 2020 report by the Reuters Institute.
It’s an article of faith in the United States that more speech is better and that the government should regulate it as little as possible. But increasingly, scholars of constitutional law, as well as social scientists, are beginning to question the way we have come to think about the First Amendment’s guarantee of free speech. They think our formulations are simplistic — and especially inadequate for our era. Censorship of external critics by the government remains a serious threat under authoritarian regimes. But in the United States and other democracies, there is a different kind of threat, which may be doing more damage to the discourse about politics, news and science. It encompasses the mass distortion of truth and overwhelming waves of speech from extremists that smear and distract.	It’s an article of faith in the United States that more speech is better and that the government should regulate it as little as possible. But increasingly, scholars of constitutional law, as well as social scientists, are beginning to question the way we have come to think about the First Amendment’s guarantee of free speech. They think our formulations are simplistic — and especially inadequate for our era. Censorship of external critics by the government remains a serious threat under authoritarian regimes. But in the United States and other democracies, there is a different kind of threat, which may be doing more damage to the discourse about politics, news and science. It encompasses the mass distortion of truth and overwhelming waves of speech from extremists that smear and distract.
This concern spans the ideological spectrum. Along with disinformation campaigns, there is the separate problem of “troll armies” — a flood of commenters, often propelled by bots — that “aim to discredit or to destroy the reputation of disfavored speakers and to discourage them from speaking again,” Jack Goldsmith, a conservative law professor at Harvard, writes in an essay in “The Perilous Public Square,” a book edited by David E. Pozen that was published this year. This tactic, too, may be directed by those in power. Either way, it’s often grimly effective at muting critical voices. And yet as Tim Wu, a progressive law professor at Columbia, points out in the same book, the “use of speech as a tool to suppress speech is, by its nature, something very challenging for the First Amendment to deal with.”	This concern spans the ideological spectrum. Along with disinformation campaigns, there is the separate problem of “troll armies” — a flood of commenters, often propelled by bots — that “aim to discredit or to destroy the reputation of disfavored speakers and to discourage them from speaking again,” Jack Goldsmith, a conservative law professor at Harvard, writes in an essay in “The Perilous Public Square,” a book edited by David E. Pozen that was published this year. This tactic, too, may be directed by those in power. Either way, it’s often grimly effective at muting critical voices. And yet as Tim Wu, a progressive law professor at Columbia, points out in the same book, the “use of speech as a tool to suppress speech is, by its nature, something very challenging for the First Amendment to deal with.”
These scholars argue something that may seem unsettling to Americans: that perhaps our way of thinking about free speech is not the best way. At the very least, we should understand that it isn’t the only way. Other democracies, in Europe and elsewhere, have taken a different approach. Despite more regulations on speech, these countries remain democratic; in fact, they have created better conditions for their citizenry to sort what’s true from what’s not and to make informed decisions about what they want their societies to be. Here in the United States, meanwhile, we’re drowning in lies.	These scholars argue something that may seem unsettling to Americans: that perhaps our way of thinking about free speech is not the best way. At the very least, we should understand that it isn’t the only way. Other democracies, in Europe and elsewhere, have taken a different approach. Despite more regulations on speech, these countries remain democratic; in fact, they have created better conditions for their citizenry to sort what’s true from what’s not and to make informed decisions about what they want their societies to be. Here in the United States, meanwhile, we’re drowning in lies.
Facts and transparency are the intended pillars of the modern First Amendment. Since the nation’s founding, the Constitution has guaranteed that the government “shall make no law” abridging “the freedom of speech, or of the press; or the right of the people peaceably to assemble.” For more than a century, however, these limits on the state’s power were worth little. From 1798 to 1801, more than two dozen people, including several newspaper editors, were prosecuted by the administration of President John Adams under the Alien and Sedition Acts, which made “malicious writing” a crime. Protesters were also jailed for criticizing the government during World War I.	Facts and transparency are the intended pillars of the modern First Amendment. Since the nation’s founding, the Constitution has guaranteed that the government “shall make no law” abridging “the freedom of speech, or of the press; or the right of the people peaceably to assemble.” For more than a century, however, these limits on the state’s power were worth little. From 1798 to 1801, more than two dozen people, including several newspaper editors, were prosecuted by the administration of President John Adams under the Alien and Sedition Acts, which made “malicious writing” a crime. Protesters were also jailed for criticizing the government during World War I.
In 1919, Justice Oliver Wendell Holmes Jr. invoked the First Amendment to dispute the legality of prosecuting five anarchists for distributing leaflets that called for workers to strike at munitions factories. “The ultimate good desired is better reached by free trade in ideas,” Holmes wrote.	In 1919, Justice Oliver Wendell Holmes Jr. invoked the First Amendment to dispute the legality of prosecuting five anarchists for distributing leaflets that called for workers to strike at munitions factories. “The ultimate good desired is better reached by free trade in ideas,” Holmes wrote.
One of Holmes’s chief influences was the British philosopher John Stuart Mill, who argued in his foundational 1859 treatise “On Liberty” that it is wrong to censor ideas, because knowledge arises from the “the clearer perception and livelier impression of truth, produced by its collision with error.” In the process, the capacity of citizens to weigh policy questions is strengthened. The government should not censor false or harmful speech because its judgment might be wrong.	One of Holmes’s chief influences was the British philosopher John Stuart Mill, who argued in his foundational 1859 treatise “On Liberty” that it is wrong to censor ideas, because knowledge arises from the “the clearer perception and livelier impression of truth, produced by its collision with error.” In the process, the capacity of citizens to weigh policy questions is strengthened. The government should not censor false or harmful speech because its judgment might be wrong.
Based on Mill’s conception of free speech, the political theorist Alexander Meiklejohn argued for elevating the right above other rights, as the foundation of democracy, in his 1948 book “Free Speech and its Relation to Self-Government.” Mill and Meiklejohn stand for the proposition that unfettered debate — Holmes’s “free trade in ideas,” or the “marketplace of ideas,” coined by Justice William O. Douglas in 1953 — furthers the bedrock values of the pursuit of truth, individual autonomy and democratic self-governance.	Based on Mill’s conception of free speech, the political theorist Alexander Meiklejohn argued for elevating the right above other rights, as the foundation of democracy, in his 1948 book “Free Speech and its Relation to Self-Government.” Mill and Meiklejohn stand for the proposition that unfettered debate — Holmes’s “free trade in ideas,” or the “marketplace of ideas,” coined by Justice William O. Douglas in 1953 — furthers the bedrock values of the pursuit of truth, individual autonomy and democratic self-governance.
In the 1960s, based on these principles, Supreme Court majorities laid the cornerstones of modern American free-speech protections. In the case Brandenburg v. Ohio, the justices struck down an Ohio law used to arrest a Ku Klux Klan leader for speaking at a rally, barring the government from punishing speech unless it encouraged and was likely to cause “imminent lawless action,” like a riot. In the foundational case New York Times v. Sullivan, the court made it difficult for a public figure to sue a newspaper for libel that included false statements. Errors were “inevitable in free debate,” the court said, and “must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need,’” quoting a previous ruling.	In the 1960s, based on these principles, Supreme Court majorities laid the cornerstones of modern American free-speech protections. In the case Brandenburg v. Ohio, the justices struck down an Ohio law used to arrest a Ku Klux Klan leader for speaking at a rally, barring the government from punishing speech unless it encouraged and was likely to cause “imminent lawless action,” like a riot. In the foundational case New York Times v. Sullivan, the court made it difficult for a public figure to sue a newspaper for libel that included false statements. Errors were “inevitable in free debate,” the court said, and “must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need,’” quoting a previous ruling.
It’s a fundamentally optimistic vision: Good ideas win. The better argument will prove persuasive.	It’s a fundamentally optimistic vision: Good ideas win. The better argument will prove persuasive.
There’s a countertradition, however. It’s alert to the ways in which demagogic leaders or movements can use propaganda, an older term that can be synonymous with disinformation. A crude authoritarian censors free speech. A clever one invokes it to play a trick, twisting facts to turn a mob on a subordinated group and, in the end, silence as well as endanger its members. Looking back at the rise of fascism and the Holocaust in her 1951 book “The Origins of Totalitarianism,” the political philosopher Hannah Arendt focused on the use of propaganda to “make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism.”	There’s a countertradition, however. It’s alert to the ways in which demagogic leaders or movements can use propaganda, an older term that can be synonymous with disinformation. A crude authoritarian censors free speech. A clever one invokes it to play a trick, twisting facts to turn a mob on a subordinated group and, in the end, silence as well as endanger its members. Looking back at the rise of fascism and the Holocaust in her 1951 book “The Origins of Totalitarianism,” the political philosopher Hannah Arendt focused on the use of propaganda to “make people believe the most fantastic statements one day, and trust that if the next day they were given irrefutable proof of their falsehood, they would take refuge in cynicism.”
In other words, good ideas do not necessarily triumph in the marketplace of ideas. “Free speech threatens democracy as much as it also provides for its flourishing,” the philosopher Jason Stanley and the linguist David Beaver argue in their forthcoming book, “The Politics of Language.”	In other words, good ideas do not necessarily triumph in the marketplace of ideas. “Free speech threatens democracy as much as it also provides for its flourishing,” the philosopher Jason Stanley and the linguist David Beaver argue in their forthcoming book, “The Politics of Language.”
Concerns about the harm of unfettered speech have flared on the left in the United States since the 1970s. In that decade, some feminists, led by the legal scholar Catharine A. MacKinnon and the activist Andrea Dworkin, fought to limit access to pornography, which they viewed as a form of subordination and a violation of women’s civil rights. In the 1980s and ’90s, scholars developing critical race theory, which examines the role of law in maintaining race-based divisions of power, called for a reading of the First Amendment that recognized racist hate speech as an injury that courts could redress.	Concerns about the harm of unfettered speech have flared on the left in the United States since the 1970s. In that decade, some feminists, led by the legal scholar Catharine A. MacKinnon and the activist Andrea Dworkin, fought to limit access to pornography, which they viewed as a form of subordination and a violation of women’s civil rights. In the 1980s and ’90s, scholars developing critical race theory, which examines the role of law in maintaining race-based divisions of power, called for a reading of the First Amendment that recognized racist hate speech as an injury that courts could redress.
But the Supreme Court has strongly protected hate speech. In 1992, the Supreme Court unanimously said that the City of St. Paul could not specially punish, as a hate crime, the public burning of a cross or the display of a swastika. In 2011, in an 8-to-1 vote, the court said the government could not stop members of the Westboro Baptist Church in Kansas from picketing military funerals across the nation to protest what they perceived to be the government’s tolerance of homosexuality by holding signs like “Thank God for Dead Soldiers.” Speech can “inflict great pain,” Chief Justice John G. Roberts Jr. wrote for the majority. “On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”	But the Supreme Court has strongly protected hate speech. In 1992, the Supreme Court unanimously said that the City of St. Paul could not specially punish, as a hate crime, the public burning of a cross or the display of a swastika. In 2011, in an 8-to-1 vote, the court said the government could not stop members of the Westboro Baptist Church in Kansas from picketing military funerals across the nation to protest what they perceived to be the government’s tolerance of homosexuality by holding signs like “Thank God for Dead Soldiers.” Speech can “inflict great pain,” Chief Justice John G. Roberts Jr. wrote for the majority. “On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course — to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”
In 2012, by a 6-to-3 vote in United States v. Alvarez, the court provided some constitutional protection for an individual’s intentional lies, at least as long as they don’t cause serious harm. The majority said that the “mere potential” for government censorship casts “a chill the First Amendment cannot permit if free speech, thought and discourse are to remain a foundation of our freedom.”	In 2012, by a 6-to-3 vote in United States v. Alvarez, the court provided some constitutional protection for an individual’s intentional lies, at least as long as they don’t cause serious harm. The majority said that the “mere potential” for government censorship casts “a chill the First Amendment cannot permit if free speech, thought and discourse are to remain a foundation of our freedom.”
The Supreme Court has also taken the First Amendment in another direction that had nothing to do with individual rights, moving from preserving a person’s freedom to dissent to entrenching the power of wealthy interests. In the 1970s, the court started protecting corporate campaign spending alongside individual donations. Legally speaking, corporate spending on speech that was related to elections was akin to the shouting of protesters. This was a “radical break with the history and traditions of U.S. law,” the Harvard law professor John Coates wrote in a 2015 article published by the University of Minnesota Law School. Over time, the shift helped to fundamentally alter the world of politics. In the 2010 Citizens United decision, the court’s conservative majority opened the door to allowing corporations (and unions) to spend unlimited amounts on political advocacy, as long as they donated to interest groups and political-action committees rather than to campaigns.	The Supreme Court has also taken the First Amendment in another direction that had nothing to do with individual rights, moving from preserving a person’s freedom to dissent to entrenching the power of wealthy interests. In the 1970s, the court started protecting corporate campaign spending alongside individual donations. Legally speaking, corporate spending on speech that was related to elections was akin to the shouting of protesters. This was a “radical break with the history and traditions of U.S. law,” the Harvard law professor John Coates wrote in a 2015 article published by the University of Minnesota Law School. Over time, the shift helped to fundamentally alter the world of politics. In the 2010 Citizens United decision, the court’s conservative majority opened the door to allowing corporations (and unions) to spend unlimited amounts on political advocacy, as long as they donated to interest groups and political-action committees rather than to campaigns.
By requiring the state to treat alike categories of speakers — corporations and individuals — the Supreme Court began to go far beyond preventing discrimination based on viewpoint or the identity of an individual speaker. “Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” MacKinnon, now a law professor at the University of Michigan, wrote in “The Free Speech Century,” a 2018 essay collection. Instead of “radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed,” she wrote, the First Amendment now serves “authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.” In the same year, Justice Elena Kagan warned that the court’s conservative majority was “weaponizing the First Amendment” in the service of corporate interests, in a dissent to a ruling against labor unions.	By requiring the state to treat alike categories of speakers — corporations and individuals — the Supreme Court began to go far beyond preventing discrimination based on viewpoint or the identity of an individual speaker. “Once a defense of the powerless, the First Amendment over the last hundred years has mainly become a weapon of the powerful,” MacKinnon, now a law professor at the University of Michigan, wrote in “The Free Speech Century,” a 2018 essay collection. Instead of “radicals, artists and activists, socialists and pacifists, the excluded and the dispossessed,” she wrote, the First Amendment now serves “authoritarians, racists and misogynists, Nazis and Klansmen, pornographers and corporations buying elections.” In the same year, Justice Elena Kagan warned that the court’s conservative majority was “weaponizing the First Amendment” in the service of corporate interests, in a dissent to a ruling against labor unions.
If Trump’s deeply conservative third Supreme Court nominee, Amy Coney Barrett, is confirmed, the court will most likely become more committed to its path of using the First Amendment to empower corporations. Somewhere along the way, the conservative majority has lost sight of an essential point: The purpose of free speech is to further democratic participation. “The crucial function of protecting speech is to give persons the sense that the government is theirs, which we might call democratic legitimation,” says the Yale law professor Robert Post. “Campbell Soup Company can’t experience democratic legitimation. But a person can. If we lose one election, we can win the next one. We can continue to identify with the democratic process so long as we’re given the opportunity to shape public opinion. That’s why we have the First Amendment.”	If Trump’s deeply conservative third Supreme Court nominee, Amy Coney Barrett, is confirmed, the court will most likely become more committed to its path of using the First Amendment to empower corporations. Somewhere along the way, the conservative majority has lost sight of an essential point: The purpose of free speech is to further democratic participation. “The crucial function of protecting speech is to give persons the sense that the government is theirs, which we might call democratic legitimation,” says the Yale law professor Robert Post. “Campbell Soup Company can’t experience democratic legitimation. But a person can. If we lose one election, we can win the next one. We can continue to identify with the democratic process so long as we’re given the opportunity to shape public opinion. That’s why we have the First Amendment.”
On May 16, 2017, Fox News posted an article that drew on a report from the local Fox station in Washington, laying out a conspiracy theory about the death of Seth Rich, a staff member at the Democratic National Committee who was apparently the victim of an attempted street robbery. The story falsely implicated Rich in the Russian hacking of committee emails, which were released by WikiLeaks during the 2016 presidential campaign. Sean Hannity amplified the lies about Rich on his Fox News show that night and the former House speaker Newt Gingrich repeated them on “Fox & Friends” a few days later. The falsehoods spread to conspiracy websites and social media. Fox News retracted its false report online a week later, but “Fox & Friends” did not; Hannity said on his radio show, “I retracted nothing.” An ABC affiliate owned by the Sinclair Broadcast Group, a conservative owner of local TV stations, then aired another report on the Rich conspiracy theory, which the local Fox station covered, giving it life for another news cycle.	On May 16, 2017, Fox News posted an article that drew on a report from the local Fox station in Washington, laying out a conspiracy theory about the death of Seth Rich, a staff member at the Democratic National Committee who was apparently the victim of an attempted street robbery. The story falsely implicated Rich in the Russian hacking of committee emails, which were released by WikiLeaks during the 2016 presidential campaign. Sean Hannity amplified the lies about Rich on his Fox News show that night and the former House speaker Newt Gingrich repeated them on “Fox & Friends” a few days later. The falsehoods spread to conspiracy websites and social media. Fox News retracted its false report online a week later, but “Fox & Friends” did not; Hannity said on his radio show, “I retracted nothing.” An ABC affiliate owned by the Sinclair Broadcast Group, a conservative owner of local TV stations, then aired another report on the Rich conspiracy theory, which the local Fox station covered, giving it life for another news cycle.
In a 2018 book, “Network Propaganda,” Yochai Benkler, a director of the Berkman Klein Center at Harvard, and two researchers there, Robert Faris and Hal Roberts, mapped the spread of political disinformation in the United States from 2015 to 2018. Analyzing the hyperlinks of four million news articles, the three authors found that the conservative media did not counter lies and distortions, but rather recycled them from one outlet to the next, on TV and radio and through like-minded websites.	In a 2018 book, “Network Propaganda,” Yochai Benkler, a director of the Berkman Klein Center at Harvard, and two researchers there, Robert Faris and Hal Roberts, mapped the spread of political disinformation in the United States from 2015 to 2018. Analyzing the hyperlinks of four million news articles, the three authors found that the conservative media did not counter lies and distortions, but rather recycled them from one outlet to the next, on TV and radio and through like-minded websites.
The dearth of competition for factual accuracy among conservative outlets leaves their audiences vulnerable to disinformation even if the mainstream news media combats it. People are more likely to believe fact-checking from a source that speaks against its apparent political interest, research shows. In the eyes of many conservatives, news outlets like The Washington Post, The New York Times and CNN do not fill that role when they challenge a story that Trump and Fox News promote.	The dearth of competition for factual accuracy among conservative outlets leaves their audiences vulnerable to disinformation even if the mainstream news media combats it. People are more likely to believe fact-checking from a source that speaks against its apparent political interest, research shows. In the eyes of many conservatives, news outlets like The Washington Post, The New York Times and CNN do not fill that role when they challenge a story that Trump and Fox News promote.
Mainstream publications also make mistakes or run with a hyped narrative. The repeated front-page coverage that The New York Times gave to Hillary Clinton’s use of a private email server, after breaking the story, shadowed her defeat in 2016. It was also skewered by press critics — an example of how competing outlets challenge and correct one another (even if the system sometimes fails in real time). This “reality-check dynamic” in the mainstream and left-leaning media, Benkler, Faris and Roberts write, “still leaves plenty of room for partisanship.” But the standards of journalism, however flawed, appear to “significantly constrain disinformation.”	Mainstream publications also make mistakes or run with a hyped narrative. The repeated front-page coverage that The New York Times gave to Hillary Clinton’s use of a private email server, after breaking the story, shadowed her defeat in 2016. It was also skewered by press critics — an example of how competing outlets challenge and correct one another (even if the system sometimes fails in real time). This “reality-check dynamic” in the mainstream and left-leaning media, Benkler, Faris and Roberts write, “still leaves plenty of room for partisanship.” But the standards of journalism, however flawed, appear to “significantly constrain disinformation.”
In the past, ensuring a vibrant free press made up of competing outlets was an express aim of federal policy. From the founding until the early 20th century, Congress lowered the cost of starting and running a newspaper or magazine by setting low postage rates for mailed copies. The advent of radio raised questions about how to foster competition and public access. “Lawmakers of both parties recognized the danger that an information chokehold poses to democratic self-government,” says Ellen P. Goodman, a law professor at Rutgers University. “So policymakers adopted structures to ensure diversity of ownership, local control of media and public broadcasting.”	In the past, ensuring a vibrant free press made up of competing outlets was an express aim of federal policy. From the founding until the early 20th century, Congress lowered the cost of starting and running a newspaper or magazine by setting low postage rates for mailed copies. The advent of radio raised questions about how to foster competition and public access. “Lawmakers of both parties recognized the danger that an information chokehold poses to democratic self-government,” says Ellen P. Goodman, a law professor at Rutgers University. “So policymakers adopted structures to ensure diversity of ownership, local control of media and public broadcasting.”
In 1927, when Congress created the licensing system for exclusive rights to the broadcast spectrum, so that radio broadcasters could secure a place on the dial, lawmakers told broadcasters to act “as if people of a community should own a station.” The 1934 Communications Act similarly required anyone with a broadcast license to operate in the “public interest” and allocated spectrum based on ensuring that local communities had their own stations. In 1949, the Federal Communications Commission established the fairness doctrine, which interpreted operating in the public interest to require broadcasters to cover major public-policy debates and present multiple points of view. And in 1967, Congress created and funded the Corporation for Public Broadcasting, whose mission is to “promote an educated and informed civil society,” and reserved broadcast spectrum for local NPR and PBS stations.	In 1927, when Congress created the licensing system for exclusive rights to the broadcast spectrum, so that radio broadcasters could secure a place on the dial, lawmakers told broadcasters to act “as if people of a community should own a station.” The 1934 Communications Act similarly required anyone with a broadcast license to operate in the “public interest” and allocated spectrum based on ensuring that local communities had their own stations. In 1949, the Federal Communications Commission established the fairness doctrine, which interpreted operating in the public interest to require broadcasters to cover major public-policy debates and present multiple points of view. And in 1967, Congress created and funded the Corporation for Public Broadcasting, whose mission is to “promote an educated and informed civil society,” and reserved broadcast spectrum for local NPR and PBS stations.
During these decades, broadcasters were held to a standard of public trusteeship, in which the right to use the airwaves came with a mandate to provide for democratic discourse. Broadcasters made money — lots of it — but profit wasn’t their only reason for existing. “The networks had a public-service obligation, and when they went to get their licenses renewed, the news divisions fulfilled that,” says Matthew Gentzkow, an economist at Stanford who studies trust in information. The model coincided with a rare period, in American history, of relatively high levels of trust in media and low levels of political polarization.	During these decades, broadcasters were held to a standard of public trusteeship, in which the right to use the airwaves came with a mandate to provide for democratic discourse. Broadcasters made money — lots of it — but profit wasn’t their only reason for existing. “The networks had a public-service obligation, and when they went to get their licenses renewed, the news divisions fulfilled that,” says Matthew Gentzkow, an economist at Stanford who studies trust in information. The model coincided with a rare period, in American history, of relatively high levels of trust in media and low levels of political polarization.
But public trusteeship for broadcast and diverse ownership began to unravel with the libertarian shift of the Reagan era. In the mid-1980s, the administration waived the F.C.C. rule that barred a single entity from owning a TV station and a daily newspaper in the same local market to allow Rupert Murdoch to continue to own The New York Post and The Boston Herald after he bought his first broadcast TV stations in New York and Boston.	But public trusteeship for broadcast and diverse ownership began to unravel with the libertarian shift of the Reagan era. In the mid-1980s, the administration waived the F.C.C. rule that barred a single entity from owning a TV station and a daily newspaper in the same local market to allow Rupert Murdoch to continue to own The New York Post and The Boston Herald after he bought his first broadcast TV stations in New York and Boston.